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21 June 2012

“Executive Privilege” Would Not be an Issue Had We Listened to Patrick Henry

Monday,June 9, 1788. 

Mandeville, LA – Perhaps instead of trading barbs in the fashion of “well Bush did it” followed by “yeah but Obama has doubled down on it…and Karl Rove s–ks anyways!” it would be more productive to ask WHY we have an Executive to start with and all his attendant agencies which bequeath these tyrannical powers? During the debates over ratification in the VA Convention, Patrick Henry looked into that most prescient of crystal balls that must have been in his possession and predicted with astounding accuracy what the American Presidency, under the Constitution, would become. If Henry was so accurate predicting today (and 1861, 1901, 1931, 1933, 1941, 1964, 1967, 1971, 1972 et cetera) might he not be accurate looking even MORE forward? If so then why will no one dare to issue the challenge to “consider our way”? Is this future a foregone conclusion or do the self governing people of these united states not have a say so in altering that course as in altering their forms of government? – Mike Church

[The 1st and 2d sections still under consideration.]

See the Constitution being drafted and ratified in Mike Church's "Spirit of '76"

Order the Spirit of '76 Starring Patrick Henry in the VA Ratifying Convention- on DVD from Founders Depot

Mr. HENRY. Mr. Chairman, I find myself again constrained to trespass on the patience of this committee. I wish there was a prospect of union in our sentiments: so much time would not then be taken up. But when I review the magnitude of the subject under consideration, and of dangers which appear to me in this new plan of government, and compare thereto my poor abilities to secure our rights, it will take much more time, in my poor, unconnected way, to traverse the objectionable parts of it; there are friends here who will be abler than myself to make good those objections which to us appear well founded. If we recollect, on last Saturday, I made some observations on some of those dangers which these gentlemen would fain persuade us hang over the citizens of this commonwealth to induce us to change the government, and adopt the new plan. Unless there be great and awful dangers, the change is dangerous, and the experiment ought not to be made. In estimating the magnitude of these dangers, we are obliged to take a most serious view of them — to see them, to handle them, and to be familiar with them. It is not sufficient to feign mere imaginary dangers; there must be a dreadful reality. The great question between us is, Does that reality exist? These dangers are partially attributed to bad laws, execrated by the community at large. It is said the people wish to change the government. I should be happy to meet them on that ground. Should the people wish to change it, we should be innocent of the dangers. It is a fact that the people do not wish to change their government. How am I to prove it? It will rest on my bare assertion, unless supported by an internal conviction in men’s breasts. My poor say-so is a mere nonentity. But, sir, I am persuaded that four fifths of the people of Virginia must have amendments to the new plan, to reconcile them to a change of their government. It is a slippery foundation for the people to rest their political salvation on my or their assertions. No government can flourish unless it be founded on the affection of the people. Unless gentlemen can be sure that this new system is founded on that ground, they ought to stop their career.

It has interposed that hereditary nobility between the king and commons. If the host of lords assist or permit the king to overturn the liberties of the people, the same tyranny will destroy them; they will therefore keep the balance in the democratic branch. Suppose they see the commons encroach upon the king: self-love, that great energetic check, will call upon them to interpose; for, if the king be destroyed, their destruction must speedily follow. Here is a consideration, which prevails, in my mind, to pronounce the British government superior, in this respect, to any government that ever was in any country. Compare this with your congressional checks. I beseech gentlemen to consider whether they can say, when trusting power, that a mere patriotic profession will be equally operative and efficacious as the check of self-love. In considering the experience of ages, is it not seen that fair, disinterested patriotism, and professions of attachment to rectitude, have never been solely trusted to by an enlightened, free people? If you depend on your President’s and senators’ patriotism, you are gone. Have you a resting-place like the British government? Where is the rock of your salvation? The real rock of political salvation is self-love, perpetuated from age to age in every human breast, and manifested in every action. If they can stand the temptations of human nature, you are safe. If you have a good President, senators, and representatives, there is no danger. But can this be expected from human nature? Without real checks, it will not suffice that some of them are good. A good President, or senator, or representative, will have a natural weakness. Virtue will slumber.

We are, in the next place, frightened by dangers from Holland. We must change our government to escape the wrath of that republic. Holland groans under a government like this new one. A stadtholder, sir, a Dutch president, has brought on that country miseries which will not permit them to collect debts with fleets or armies. The wife of a Dutch stadtholder brought one hundred thousand men against that republic, and prostrated all opposition. This President will bring miseries on us like those of Holland. Such is the condition of European affairs, that it would be unsafe for them to send fleets or armies to collect debts. But here, sir, they make a transition to objects of another kind. We are presented with dangers of a very uncommon nature. I am not acquainted with the arts of painting. Some gentlemen have a peculiar talent for them. They are practised with great ingenuity on this occasion. As a counterpart to what we have already been intimidated with, we are told that some lands have been sold, which cannot be found; and that this will bring war on this country. Here the picture will not stand examination. Can it be supposed, if a few land speculators and jobbers have violated the principles of probity, that it will involve this country in war? Is there no redress to be otherwise obtained, even admitting the delinquents and sufferers to be numerous? When gentlemen are thus driven to produce imaginary dangers, to induce this Convention to assent to this change, I am sure it will not be uncandid to say that the change itself is really dangerous. Then the Maryland compact is broken, and will produce perilous consequences. I see nothing very terrible in this. The adoption of the new system will not remove the evil. Will they forfeit good neighborhood with us, because the compact is broken? Then the disputes concerning the Carolina line are to involve us in dangers. A strip of land running from the westward of the Alleghany to the Mississippi, is the subject of this pretended dispute. I do not know the length or breadth of this disputed spot. Have they not regularly confirmed our right to it, and relinquished all claims to it? I can venture to pledge that the people of Carolina will never disturb us. The strength of this despised country has settled an immense tract of country to the westward. Give me leave to remark, that the honorable gentleman’s observations on our frontiers, north and south, east and west, are all inaccurate.

Will Maryland fight against this country for seeking amendments? Were there not sixty members in that state who went in quest of amendments? Sixty, against eight or ten, were in favor of pursuing amendments. Shall they fight us for doing what they themselves have done? They have sough amendments, but differently from the manner in which I wish amendments to be got. The honorable gentleman may plume himself on this difference. Will they fight us for this dissimilarity? Will they fight us for seeking the object they seek themselves? When they do, it will be time for me to hold my peace. Then, sir, comes Pennsylvania, in terrible array. Pennsylvania is to go in conflict with Virginia. Pennsylvania has been a good neighbor heretofore. She is federal — something terrible — Virginia cannot look her in the face. If we sufficiently attend to the actual situation of things, we shall conclude that Pennsylvania will do what we do. A number of that country are strongly opposed to it. Many of them have lately been convinced of its fatal tendency. They are disgorged of their federalism. I beseech you to bring this matter home to yourselves. Was there a possibility for the people of that state to know the reasons of adopting that system, or understand its principles, in so very short a period after its formation? This is the middle of June. Those transactions happened last August. The matter was circulated by every effort of industry, and the most precipitate measures taken to hurry the people into adoption. Yet now, after having had several months to investigate it, a very large part of this community, a great majority of this community, do not understand it. I have heard gentlemen of respectable abilities declare they did not understand it. If, after great pains, men of high learning, who have received the aids of a regular education, do not understand it, — if the people of Pennsylvania understood it in so short a time, it must have been from intuitive understandings, and uncommon acuteness of perception. Place yourselves in their situation; would you fight your neighbors for considering this great and awful matter? If you wish for real amendments, such as the security of the trial by jury, it will reach the hearts of the people of that state. Whatever may be the disposition of the aristocratical politicians of that country, I know there are friends of human nature in that state. If so, they will never make war on those who make professions of what they are attached to themselves.

As to the danger arising from borderers, it is mutual and reciprocal. If it be dangerous for Virginia, it is equally so for them. It will be their true interest to be united with us. The danger of our being their enemies will be a prevailing argument in our favor. It will be as powerful to admit us into the Union, as a vote of adoption, without previous amendments, could possibly be.

Then the savage Indians are to destroy us. We cannot look them in the face. The danger is here divided; they are as terrible to the other states as to us. But, sir, it is well known that we have nothing to fear from them. Our back settlers are considerably stronger than they. Their superiority increases daily. Suppose the states to be confederated all around us; what we want in numbers, we shall make up otherwise. Our compact situation and natural strength will secure us. But, to avoid all dangers, we must take shelter under the federal government. Nothing gives a decided importance but this federal government. You will sip sorrow, according to the vulgar phrase, if you want any other security than the laws of Virginia.

A number of characters, of the greatest eminence in this country, object to this government for its consolidating tendency. This is not imaginary. It is a formidable reality. If consolidation proves to be as mischievous to this country as it has been to other countries, what will the poor inhabitants of this country do? This government will operate like an ambuscade. It will destroy the state governments, and swallow the liberties of the people, without giving previous notice. If gentlemen are willing to run the hazard, let them run it; but I shall exculpate myself by my opposition and monitory warnings within these walls. But then comes paper money. We are at peace on this subject. Though this is a thing which that mighty federal Convention had no business with, yet I acknowledge that paper money would be the bane of this country. I detest it. Nothing can justify a people in resorting to it but extreme necessity. It is at rest, however, in this commonwealth. It is no longer solicited or advocated.

Sir, I ask you, and every other gentleman who hears me, if he can retain his indignation at a system which takes from the state legislatures the care and preservation of the interest of the people. One hundred and eighty representatives, the choice of the people of Virginia, cannot be trusted with their interests. They are a mobbish, suspected herd. This country has not virtue enough to manage its own internal interests. These must be referred to the chosen ten. If we cannot be trusted with the private contracts of the citizens, we must be depraved indeed. If he can prove that, by one uniform system of abandoned principles, the legislature has betrayed the rights of the people, then let us seek another shelter. So degrading an indignity, so flagrant an outrage on the states, so vile a suspicion, is humiliating to my mind, and many others.

Will the adoption of this new plan pay our debts? This, sir, is a plain question. It is inferred that our grievances are to be redressed, and the evils of the existing system to be removed, by the new Constitution. Let me inform the honorable gentleman that no nation ever paid its debts by a change of government, without the aid of industry. You never will pay your debts but by a radical change of domestic economy. At present you buy too much, and make too little, to pay. Will this new system promote manufactures, industry, and frugality? If, instead of this, your hopes and designs will be disappointed, you relinquish a great deal, and hazard indefinitely more, for nothing. Will it enhance the value of your lands? Will it lessen your burdens? Will your looms and wheels go to work by the act of adoption? If it will, in its consequence, produce these things, it will consequently produce a reform, and enable you to pay your debts. Gentlemen must prove it. I am a skeptic, an infidel, on this point. I cannot conceive that it will have these happy consequences. I cannot confide in assertions and allegations. The evils that attend us lie in extravagance and want of industry, and can only be removed by assiduity and economy. Perhaps we shall be told by gentlemen that these things will happen, because the administration is to be taken from us, and placed in the hands of the few, who will pay greater attention, and be more studiously careful than we can be supposed to be.

With respect to the economical operation of the new government, I will only remark, that the national expenses will be increased; if not doubled, it will approach it very nearly. I might, without incurring the imputation of illiberality or extravagance, say that the expense will be multiplied tenfold. I might tell you of a numerous standing army, a great, powerful navy, a long and rapacious train of officers and dependants, independent of the President, senators, and representatives, whose compensations are without limitation. How are our debts to be discharged unless the taxes are increased, when the expenses of the government are so greatly augmented? The defects of this system are so numerous and palpable, and so many states object to it, that no union can be expected, unless it be amended. Let us take a review of the facts. New Hampshire and Rhode Island have rejected it. They have refused to become federal. New York and North Carolina are reported to be strongly against it. From high authority, give me leave to tell that New York is in high opposition. Will any gentleman say that North Carolina is not against it? They may say so; but I say that the adoption of it in those two states amounts to entire uncertainty. The system must be amended before these four states will accede to it; besides, there are several other states which are dissatisfied, and wish alterations. Massachusetts has, in decided terms, proposed amendments; but, by her previous ratification, has put the cart before the horse. Maryland instituted a committee to propose amendments. It then appears that two states have actually refused to adopt; two of those who have adopted have a desire of amending; and there is a probability of its being rejected by New York and North Carolina. The other states have acceded without proposing amendments. With respect to them, local circumstances have, in my judgment, operated to produce its unconditional, instantaneous adoption. The locality of the seat of government, ten miles square, and the seat of justice, with all their concomitant emoluments, operated so powerfully with the first adopting state, that it was adopted without taking time to reflect. We are told that numerous advantages will result, from the concentration of the wealth and grandeur of the United States in one happy spot, to those who will reside in or near it. Prospects of profits and emoluments have a powerful influence on the human mind. We, sir, have no such projects as that of a grand seat of government for thirteen states, and perhaps for one hundred states hereafter. Connecticut and New Jersey have their localities also. New York lies between them. They have no ports, and are not importing states. New York is an importing state, and, taking advantage of its situation, makes them pay duties for all the articles of their consumption: thus these two states, being obliged to import all they want through the medium of New York, pay the particular taxes of that state. I know the force and effect of reasoning of this sort, by experience. When the impost was proposed, some years ago, those states which were not importing states readily agreed to concede to Congress the power of laying an impost on all goods imported, for the use of the Continental treasury. Connecticut and New Jersey, therefore, are influenced by advantages of trade in their adoption. The amount of all imposts is to go into one common treasury. This favors adoption by the non-importing states, as they participate in the profits which were before exclusively enjoyed by the importing states. Notwithstanding this obvious advantage to Connecticut, there is a formidable minority there against it. After taking this general view of American affairs, as respecting federalism, will the honorable gentleman tell me that he can expect union in America? When so many states are pointedly against it; when two adopting states have pointed out, in express terms, their dissatisfaction as it stands; and when there is so respectable a body of men discontented in every state, — can the honorable gentleman promise himself harmony, of which he is so fond? If he can, I cannot. To me it appears unequivocally clear that we shall not have that harmony. If it appears to the other states that our aversion is founded on just grounds, will they not be willing to indulge us? If disunion will really result from Virginia’s proposing amendments, will they not wish the reëstablishment of the union, and admit us, if not on such terms as we prescribe, yet on advantageous terms? Is not union as essential to their happiness as to ours? Sir, without a radical alteration, the states will never be embraced in one federal pale. If you attempt to force it down men’s throats, and call it union, dreadful consequences must follow. He has said a great deal of disunion, and the dangers that are to arise from it. When we are on the subject of disunion and dangers, let me ask, how will his present doctrine hold with what has happened? Is it consistent with that noble and disinterested conduct which he displayed on a former occasion? Did he not tell us that he withheld his signature? Where, then, were the dangers which now appear to him so formidable? He saw all America eagerly confiding that the result of their deliberations would remove their distresses. He saw all America acting under the impulses of hope, expectation, and anxiety, arising from their situation, and their partiality for the members of that Convention; yet his enlightened mind, knowing that system to be defective, magnanimously and nobly refused its approbation. He was not led by the illumined, the illustrious few. He was actuated by the dictates of his own judgment; and a better judgment than I can form. He did not stand out of the way of information. He must have been possessed of every intelligence. What alteration has a few months brought about? The eternal difference between right and wrong does not fluctuate. It is immutable. I ask this question as a public man, and out of no particular view. I wish, as such, to consult every source of information, to form my judgment on so awful a question. I had the highest respect for the honorable gentleman’s abilities. I considered his opinion as a great authority. He taught me, sir, in despite of the approbation of that great federal Convention, to doubt of the propriety of that system. When I found my honorable friend in the number of those who doubted, I began to doubt also. I coincided with him in opinion. I shall be a stanch and faithful disciple of his. I applaud that magnanimity which led him to withhold his signature. If he thinks now differently, he is as free as I am. Such is my situation, that, as a poor individual, I look for information every where.

This government is so new, it wants a name. I wish its other novelties were as harmless as this. He told us we had an American dictator in the year 1781. We never had an American President. In making a dictator, we followed the example of the most glorious, magnanimous, and skilful nations. In great dangers, this power has been given. Rome had furnished us with an illustrious example. America found a person for that trust: she looked to Virginia for him. We gave a dictatorial power to hands that used it gloriously; and which were rendered more glorious by surrendering it up. Where is there a breed of such dictators? Shall we find a set of American Presidents of such a breed? Will the American President come and lay prostrate at the feet of Congress his laurels? I fear there are few men who can be trusted on that head. The glorious republic of Holland has erected monuments of her warlike intrepidity and valor; yet she is now totally ruined by a stadtholder, a Dutch president.

Your President may easily become king. Your Senate is so imperfectly constructed that your dearest rights may be sacrificed by what may be a small minority; and a very small minority may continue forever unchangeably this government, although horridly defective. Where are your checks in this government? Your strongholds will be in the hands of your enemies. It is on a supposition that your American governors shall be honest, that all the good qualities of this government are founded; but its defective and imperfect construction puts it in their power to perpetrate the worst of mischiefs, should they be bad men; and, sir, would not all the world, from the eastern to the western hemisphere, blame our distracted folly in resting our rights upon the contingency of our rulers being good or bad? Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men, without a consequent loss of liberty! I say that the loss of that dearest privilege has ever followed, with absolute certainty, every such mad attempt.

If your American chief be a man of ambition and abilities, how easy is it for him to render himself absolute! The army is in his hands, and if he be a man of address, it will be attached to him, and it will be the subject of long meditation with him to seize the first auspicious moment to accomplish his design; and, sir, will the American spirit solely relieve you when this happens? I would rather infinitely — and I am sure most of this Convention are of the same opinion — have a king, lords, and commons, than a government so replete with such insupportable evils. If we make a king, we may prescribe the rules by which he shall rule his people, and interpose such checks as shall prevent him from infringing them; but the President, in the field, at the head of his army, can prescribe the terms on which he shall reign master, so far that it will puzzle any American ever to get his neck from under the galling yoke. I cannot with patience think of this idea. If ever he violates the laws, one of two things will happen: he will come at the head of his army, to carry every thing before him; or he will give bail, or do what Mr. Chief Justice will order him. If he be guilty, will not the recollection of his crimes teach him to make one bold push for the American throne? Will not the immense difference between being master of every thing, and being ignominiously tried and punished, powerfully excite him to make this bold push? But, sir, where is the existing force to punish him? Can he not, at the head of his army, beat down every opposition? Away with your President! we shall have a king: the army will salute him monarch: your militia will leave you, and assist in making him king, and fight against you: and what have you to oppose this force? What will then become of you and your rights? Will not absolute despotism ensue?

[Here Mr. HENRY strongly and pathetically expatiated on the probability of the President’s enslaving America, and the horrid consequences that must result.]

No constitution under heaven, founded on principles of justice, can warrant the relinquishment of the most sacred rights of society, to promote the interest of one part of it. Do you not see the danger into which you are going, to throw away one of your dearest and most valuable rights? The people of that country now receive great and valuable emoluments from that right being protected by the existing government. But they must now abandon them. For is there any actual security? Show me any clause in that paper which secures that great right. What was the calculation which told you that it would be safer under the new than under the old government? In my mind, it was erroneous. The honorable gentleman told you that there were two bodies, or branches, which must concur to make a treaty. Sir, the President, as distinguished from the Senate, is nothing. They will combine, and be as one. My honorable friend said that ten men, the senators of five states, could give it up. The present system requires the consent of nine states. Consequently, its security will be much diminished. The people of Kentucky, though weak now, will not let the President and Senate take away this right. Look right, and see this abominable policy — consider seriously its fatal and pernicious tendency! Have we not that right guarantied to us by the most respectable power in Europe? France has guarantied to us our sovereignty and all its appendages. What are its appendages? Are not the rivers and waters, that wash the shores of the country, appendages inseparable from our right of sovereignty? France has guarantied this right to us in the most full and extensive manner. What would have been the consequences had this project with Spain been completed and agreed to? France would have told you, “You have given it up yourselves; you have put it on a different footing; and if your bad policy has done this, it is your own folly. You have drawn it on your own heads; and, as you have bartered away this valuable right, neither policy nor justice will call on me to guaranty what you gave up yourselves.” This language would satisfy the most sanguine American.

Monday,June 14, 1788.

The Convention, according to the order of the day, again resolved itself into a committee of the whole Convention, to take into further consideration the proposed plan of government. Mr. WYTHE in the chair.

Mr. Henry – We are told, we are afraid to trust ourselves; that our own representatives — Congress — will not exercise their powers oppressively; that we shall not enslave ourselves; that the militia cannot enslave themselves, &c. Who has enslaved France, Spain, Germany, Turkey, and other countries which groan under tyranny? They have been enslaved by the hands of their own people. If it will be so in America, it will be only as it has been every where else. I am still persuaded that the power of calling forth the militia, to execute the laws of the Union, &c., is dangerous. We requested the gentleman to show the cases where the militia would be wanting to execute the laws. Have we received a satisfactory answer? When we consider this part, and compare it to other parts, which declare that Congress may declare war, and that the President shall command the regular troops, militia, and navy, we shall find great danger. Under the order of Congress, they shall suppress insurrections. Under the order of Congress, they shall be called to execute the laws. It will result, of course, that this is to be a government of force. Look at the part which speaks of excises, and you will recollect that those who are to collect excises and duties are to be aided by military force. They have power to call them out, and to provide for arming, organizing, disciplining, them. Consequently, they are to make militia laws for this state.

Let us take an example of a single department; for instance, that of the President, who has certain things annexed to his office. Does it not reasonably follow that he must have some incidental powers? The principle of incidental powers extends to all parts of the system. If you then say that the President has incidental powers, you reduce it to tautology. I cannot conceive that the fair interpretation of these words is as the honorable member says.

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